Erfindergemeinschaft UroPep GbR v. Lilly is closing in on trial, and on Monday visiting Judge William C. Bryson of the Federal Circuit, who as readers know, maintains an active docket of district court patent cases in Marshall and is formally invested as an honorary trial judge in the EDTX with a certificate and everything, recently issued a 13 page order ruling on the parties’ motions in limine. (Ed. note: “Erfindergemeinschaft” does not, as you might think, mean “find the mine shaft”, but instead roughly translates to “inventor’s association”, which makes sense since the company was founded by research scientists at Hannover Medical School. No clue what “Uropep” means in this case involving a drug used to treat erectile dysfunction, but I’ll keep looking). The holding that has the attention is the last paragraph, in which Judge Bryson decided to exclude UroPep from referring to the “presumption of validity”. He notes that there are cases going both ways on this point, and concludes that that simply means that prohibiting the use of the phrase would not be error. Having looked both ways, he explains his ruling: “In the Court’s judgment, the use of the phrase “presumption of validity” would add little to the jury’s understanding of the burden of proof on the validity issues. Moreover, the phrase might be confusing to the jury, to the extent that the jury is required to consider both that phrase and the Court’s instructions on the burden of proof. At minimum, the use of the term “presumption” would require a further definitional instruction by the Court, without leading to any greater insight on the jury’s part as to the nature of the burden of proof on the validity issues. Accordingly, the Court will exclude the use of the phrase “presumption of validity” and instead will address the burden of proof in its instructions to the jury.” 237 – Uropep
In this case, the defendant sought leave to supplement its invalidity contentions to include a theory of “double patenting.” In his order granting the motion,
If you are under 40, you probably have no idea why there is a picture of a bottle of ketchup next to the word “anticipation.” Go down the hall and ask a senior partner and enjoy the stream of profanity that comes back at you. Anyway, as I type this, the parties are arguing this case to the jury across the street in Judge Gilstrap’s court, but I thought it was worth providing a brief analysis of the court’s ruling last month recommending denying the plaintiff’s motion for summary judgment on the defendants “anticipation” defenses. This is a patent infringement case in which the plaintiffs allege that the defendant’s computer program infringes multiple claims of the three asserted patents. The plaintiff moved for summary judgment on the anticipation defenses based on the testimony of the defendant’s expert. In its order denying the motion,
A few days ago I saw a post that someone was claiming that the average settlement in a “patent troll” case was $300,000, and tweeted in response “I would have said $30,000, and lately most less than that. Just my experience.” Karma being the friend that it is, that five days later Magistrate Judge Love issued this order setting the amount of a default judgment in a case at $20,000. While the order is redacted to remove references to the amounts of the prior settlements, what it does reveal is that the prior licenses led the Court to the $20,000 number, as discussed below.
They aren’t quite as near and dear to my heart as JMOL rulings, but pretrial rulings are a close second. The parties the ground rules for the conduct of the trial, including limine rulings, orders resolving the inevitable disputes over admissibility of expert testimony, and rulings on any summary judgment motions that remain outstanding. The seven rulings from this case, which is set for trial in only a few weeks, are a pretty good example of the genre. Below are copies of the rulings with analysis.
One of the interesting questions presented by trying infringement cases against defendants in serial form is when a finding on infringement as to one defendant acts as collateral estoppel in a subsequent case. That issue is riding the fire truck this week after the remaining defendants asked for it to be considered on an emergency basis after last Friday’s noninfringement verdict in Tyler.